MACA NO. 645 OF 2023

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 ``` ``` MACA NO. 645 OF 2023 ``` ``` [AGAINST THE AWARD DATED 02.08.2022 IN OP(MV)NO.1897/2016 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM] ``` ## `APPELLANT/3RD RESPONDENT IN THE OP(MV):` ``` THE UNITED INDIA INSURANCE CO. LTD., T.P. CELL, 4TH FLOOR, JOS TRUST BUILDING, CHITTOOR ROAD, ERNAKULAM, COCHIN-682035, REPRESENTED BY THE MANAGER, REGIONAL OFFICE, UNITED INDIA INSURANCE CO. LTD., HOSPITAL ROAD, ERNAKULAM -PIN. 682 011. ``` ``` BY ADV DEEPA GEORGE ``` ## `RESPONDENT/PETITIONER IN THE OP(MV):` ``` P.B. DIBIN, AGED 34, S/O. BABU P.V, PALLIPARAMBIL HOUSE, PARK ROAD, GUMENDHA, PERUMPADAPPU, PALLURUTHY P.O., ERNAKULAM DISTRICT, COCHIN, PIN – 682006. ``` ``` BY ADVS.HARIRAJ MADHAV RAJENDRAN M.R.H. THANUJA ROSHAN VISWAJITH C.K GISHA G. RAJ REJIVUE K.C. ALINA ANNA KOSE VIDYA A.K AKHILA S. MEGNA MARIYAM M. GAYATRI VISWANATHAN C.C.REJINOLD M R RAJENDRAN NAIR (SR) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 645 OF 2023 ``` ``` -2- ``` ## `JUDGMENT` ``` This appeal is being heard today itself, as requested by both sides. ``` ``` 2.A young man of 27 years met with a road ``` ``` accident, when the motor cycle ridden by him was hit by the offending vehicle driven in a rash and negligent manner. He suffered grave injuries,resultinginalmostfull ``` ``` incapacitation; and therefore, preferred OP(MV) No.1897/2016 before the Motor Accidents Claims ``` ``` Tribunal, Ernakulam (hereinafter referred to as ``` ``` ‘the Tribunal’ for short), seeking compensation of Rs.1,42,55,000/-, which was allowed to the extent of Rs.56,83,113/-. ``` ``` 3.The Insurance Company, which had issued ``` ``` the policy of insurance to the offending vehicle, has filed this Appeal impugning the afore Award, alleging that the compensation is excessive at least under three heads, namely ``` ``` MACA NO. 645 OF 2023 ``` ``` -3- ``` |`‘Pain and Suffering’, ‘Loss of Amenities’ and`| |---| |`‘Disability’.`| |`4.`<br>`Smt.Deepa George – learned Standing`| |`Counsel for the appellant – Insurance Company,`| |`submitted that the Tribunal has erred in`| |`adopting`<br>`the`<br>`notional`<br>`income`<br>`of`<br>`the`| |`respondent/claimant as Rs.14,000/- per month,`| |`without any cogent evidence in support,`| |`particularly`<br>`because`<br>`he`<br>`was`<br>`only`<br>`an`| |`‘Electrician’. She then added that when`| |`compensation for ‘Disability’ had been awarded,`| |`it was not proper for the Tribunal to have`| |`granted Rs.8,00,000/- under the head ‘Loss of`| |`Amenities’ and Rs.5,00,000/- for ‘Pain and`| |`Suffering’. She thus prayed that the`| |`compensation under these heads be appropriately`| |`reduced.`| |`5.`<br>`Sri.M.R.Rajendran Nair, learned Senior`| |`Counsel, instructed by Smt.Alina Anna Kose –`| ``` MACA NO. 645 OF 2023 ``` ``` -4- ``` ``` learned counsel for the respondent/claimant, ``` ``` submitted that the compensation awarded by the Tribunal is extremely unjust and unfair; and ``` ``` that, going by the injuries sustained by his ``` ``` client, it should have awarded much more, both under the heads ‘Pain and Suffering’ and ‘Loss of Amenities’. He explained that he is making ``` ``` this submission because, his client has now been reduced to a state of complete incapacitation and the Medical Certificate shows that his ``` ``` cognitive faculties have been very severely impaired, even to the extent of 60% to 70%. ``` ``` 6.I have considered the afore rival ``` ``` contentions on the touchstone of the evidence on ``` ``` record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute. ``` ``` 7.I notice that the Tribunal has fixed the ``` ``` MACA NO. 645 OF 2023 ``` ``` -5- ``` ``` compensation for disability, adopting the ``` ``` notional income of the respondent as Rs.14,000/- per month, and then adding 40% future prospects to it, as per the judgment of theHonourable Supreme Court in National Insurance Company Ltd. ``` ``` v. Pranay Sethi [2017 (4) KLT 662], which is not opposed by the Insurance Company. The specific ``` ``` contention of the appellant is that, not more than Rs.10,500/- could have been taken as the notional income of the claimant, going by the ``` ``` judgment of theHonourable Supreme Court in ``` ``` Ramchandrappa v. Manager, Royal Sundaram ``` ``` Alliance Insurance Company Ltd.[(2011) 13 SCC 236]. ``` ``` 8.As an alternative submission, Smt.Deepa George submitted that, even if some amount of latitude could have been shown to the appellant, ``` ``` adverting to the judgment of theHonourable ``` ``` Supreme Court inRajani v. Oriental Insurance ``` ``` MACA NO. 645 OF 2023 ``` ``` -6- ``` ``` Company Ltd. [2022 (5) KLT Online 1012], not ``` ``` more than Rs.13,000/- ought to have been taken as her notional income. She then contended that ``` ``` the grant of Rs.8,00,000/- and Rs.5,00,000/- as ``` ``` compensation for ‘Loss of Amenities’ and ‘Pain ``` ``` and Suffering’ respectively, is excessive, ``` ``` particularly when large amounts towards ``` ``` ‘Disability’ has already been awarded. ``` ``` 9.In response, Sri.M.R.Rajendran Nair ``` ``` submitted that the injuries sustained by his ``` ``` client are nearly 22 in number, which has been ``` ``` recorded by the learned Tribunal in page 6 of ``` ``` its Award. He argued that, going by the same, it is a miracle that his client is still alive, but ``` ``` that unfortunately, he is suffering from such a ``` ``` degree of disability and incapacitation, that his life has been completely wasted and in a woefully miserable condition. ``` ``` 10.The afore rival submissions being ``` ``` MACA NO. 645 OF 2023 ``` ``` -7- ``` ``` recorded, it is evident that the factum of the ``` ``` accident and the injuries caused to the ``` ``` respondent are not disputed. In fact, they are virtually admitted by the appellant also. ``` ``` 11.Going by the medical records available, ``` ``` particularly ExtsA11 to A17 and Exts.A28 to A30 ``` ``` – series of Discharge Summary and Ext.A3 – Wound ``` ``` Certificate, it is evident that the respondent ``` ``` has suffered the following injuries: ``` 1. `Shock` 2. `Polytrauma with hypovolemic shock` 3. `Left side rib fracture – 6-10` 4. `Left diaphragmatic rupture` 5. `Fracture left transverse process of L1, L2 & L3 vertebra` 6. `Fracture right transverse process of L4 and L5` 7. `Fracture both bone left forearm` 8. `Bilateral superior and inferior pubic rami fracture with left side extending into anterior column of acetabulam` 9. `Fracture right sacral ala and promontory` 10. `Right side foot drop with neuralgic pain` 11. `Post traumatic stress disorder` 12. `Pain and tenderness on the left upper limb` 13. `Pain and tenderness over the lumbar` ``` MACA NO. 645 OF 2023 ``` ``` -8- ``` ``` spine ``` 14. `Pain and tenderness of pelvis` 15. `Lacerated wound on the left foot` 16. `6x2x1 cm lacerated wound on first intgerdigital cleft` 17. `Deep abrasion involving entire upper and lower back of trunk` 18. `Bilateral minimal pneumothorax` ``` 12.The Discharge Summaries on record would ``` ``` show that the respondent was under treatment as ``` ``` an ‘in-patient’ for 58 days; and Ext.X1 – ``` ``` Disability Certificate establishes that he is ``` ``` suffering from 80% disability, with 60% ``` ``` cognitive disability. The Tribunal has correctly ``` ``` found that he would be unable to do any job, ``` ``` since he is not even in a position to sit for ``` ``` long time, with difficulty in walking and ``` ``` climbing stairs. The learned Tribunal has also ``` ``` recorded that, on account of the severe ``` ``` injuries, including fracture of his pelvic area, ``` ``` all which the respondent can perhaps engage in ``` ``` are very minor jobs, but this may not be ``` ``` sufficient for him to earn income for future ``` ``` MACA NO. 645 OF 2023 ``` ``` -9- ``` ``` life. ``` ``` 13.Taking note of the totality of the afore circumstances, I have no doubt that the ``` ``` compensation awarded by the Tribunal under the head ‘Disability’ is without error. This is because, even though the learned Tribunal has ``` ``` taken the notional income of the respondent as ``` ``` Rs.14,000/- per month, I cannot find it to be excessive because, going byRamachandrappa ``` ``` (supra), the notional income for even a ‘Coolie’ ``` ``` in the year 2016 – when the accident occurred – ``` ``` has been standardised to be Rs.10,500/-. Moving on, InRajani (supra), theHonourable Supreme Court then went one step further to say that a ``` ``` person engaged in a skilled avocation must be offered a higher figure and that a robust view should be taken by the Tribunal. ``` ``` 14.The factum of the respondent being ``` ``` engaged as an ‘Electrician’ is not disputed and ``` ``` MACA NO. 645 OF 2023 ``` ``` -10- ``` ``` it is without doubt that it is a technical avocation. It is in such circumstances that I hold that the notional income adopted by the Tribunal cannot be found to be in error; and it also justifies reckoning of 40% future prospects as has been done by the Tribunal. ``` ``` 15.That said, however, when it comes to the ``` ``` question of compensation under the head ‘Loss of Amenities’, I have no doubt that Smt.Deepa George is right in arguing that an amount of Rs.8,00,000/- ought not to have awarded, when the disability of the respondent has been adequately compensated. The respondent has, no doubt,sufferedverygraveinjuries, incapacitating him; but on account of the compensation which he has already been offered, I am of the view that the figure under the said head will have to be reduced to Rs.2,00,000/-, which, in my opinion, is extremely apposite. To ``` ``` MACA NO. 645 OF 2023 ``` ``` -11- ``` ``` reiteratingly clarify, this Court in reducing the compensation for “Loss of Amenities” to this level because I have confirmed the notional income of the appellant to be Rs.14,000/- per month, which is added by another 40% of future prospects. ``` ``` 16.Coming to the question of compensation under the head ‘Pain and Suffering’, the injuries which I have already recorded above certainly show the horrific aftermath of the accident suffered by the respondent, who was a healthy man of 27 years at the time of the accident, and certainly had a very fruitful and worthwhile life ahead. This has been nipped on account of the accident, forcing him to live with the assistance of someone else. The pain and suffering undergone by him certainly cannot be measured pecuniarily, particularly when he has suffered several fractures, including to his ``` ``` MACA NO. 645 OF 2023 ``` ``` -12- ``` ``` vertebra, pubic rami, sacral ala and limbs. ``` ``` 17.I do not, therefore, find the ``` ``` compensation under the head “Pain and Suffering” to be excessive, and therefore, confirm it. ``` ``` Resultantly, this Appeal is allowed in part, reducing the compensation under the head “Loss ``` ``` of Amenities” to Rs.1,50,000/- (Rupees one lakh fifty thousand only) from Rs.8,00,000/-. ``` ``` In all other heads, the award of the Tribunal will remain intact. ``` ``` Consequently, the respondent will be at full liberty to recover the compensation, as reduced ``` ``` by this Court from the Insurance Company, along ``` ``` with interest at the rate of 7.5%, (modifying the rate of interest of 8% awarded by the Tribunal), from the date of claim until it is ``` ``` recovered. ``` ``` After I dictated this part of judgment, ``` ``` Smt.Deepa George – learned counsel for the ``` ``` MACA NO. 645 OF 2023 ``` ``` -13- ``` ``` appellant, argued that, while adopting the multiplier to fix compensation for disability, the Tribunal ought to have reduced the period of ``` ``` 12 months – which had been taken by it for reckoning the compensation for “Loss of Earning”. ``` ``` I cannot fathom the purport of the afore argument because, even assuming that 12 months - namely one year - are added to the age of the respondent at the time of the accident, it would only make him 28 years old, and the multiplier would still continue to be the same, namely 17, as has been correctly taken by the Tribunal. This argument, therefore, holds no merit. ``` ``` At this time, Smt.Deepa George intervened again to say that, since the account of the Insurance Company has been attached by the claimant in execution of the Award, they are finding it difficult to operate and therefore, ``` ``` MACA NO. 645 OF 2023 ``` **==> picture [30 x 8] intentionally omitted <==** ``` requested that said order be vacated. ``` ``` I propose to accede to the afore request, ``` ``` however, on condition that the Insurance Company will deposit the entire amount, as modified by this Court, within a period of two months from the date of receipt of a copy of this judgment. It is so ordered. ``` ``` The attachment over the Bank Account will, therefore, be lifted; but, should the aforesaid condition is violated, then it shall come back into force on the expiration of the above period. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` akv ```